PCHR: Cancellation of Electoral Lists for Eliminating One Candidate Violates Law and Undermines Voters’ Will

NOVANEWS

Position Paper

Introduction

The Central Elections Commission (CEC) cancelled 5 electoral lists in the local councils of Beit Hanoun, Um al-Nasser, al-Zahra’ and al-Nusairat in the Gaza Strip and Yatta in the West Bank following the CEC’s approval of objections presented against some candidates on these lists. The Palestinian Center for Human Rights (PCHR) stresses that CEC’s decision violates the spirit of the Local Council Elections Law no. 10/2005 and its Amendments. It further contradicts with the aim of the electoral process that is based on identifying the voters’ real will and choosing their representatives, which would not be accomplished due to the cancellation of electoral lists that may include a big number of voters.

 

CEC declared that nomination was closed on 25 August 2016 and published the initial lists on 29 August 2016, giving everyone the right to submit objections within the legal period, i.e. three days. CEC received last week, during which the initial lists were published, 163 objections on electoral lists in the Gaza Strip and West Bank.

 

According to a statement issued by the CEC yesterday, the objections were submitted for the following reasons: 24 objections to financial acquittal, 42 objections to residency of candidates, 25 objections to resignations, 20 objections to alleged cases against candidates and 52 objections for other reasons not mentioned in the statement.

 

CEC stated that it rejected 154 objections and approved only seven: 4 objections in the Gaza Strip upon which 4 lists were cancelled in each of Beit Hanoun, Um al-Nasser, al-Zahra’ and al-Nusairat. Nonetheless, CEC approved 3 other objections in the West Bank upon which Yatta list was cancelled.

 

The Local Council Elections Law no. 10/2005 is flawed by its ambiguity and lack of detailed articles relevant to the results of objections to electoral lists. In fact, the law should be interpreted in conformity with the legal and objective logic. PCHR believes  that CEC did not properly interpret the law and therefore granted itself serious powers, undermining the concept of real representation of the voters’ will. Therefore, PCHR issued this paper as an objective position based on the profound comprehension of the law and purpose of the electoral process and on the relevant international standards and principles.

 

The law is ambiguous and interpretation should be logical and in the interest of the electoral process

 

The cancellation of a whole list because CEC found out that a candidate in the list did not fulfill the nomination conditions according to article 18 of the Local Council Elections Law no. 10/2005 is controversial for the vagueness of the law itself in this issue. Accordingly, there has been a dispute within the judiciary in the West Bank regarding similar objections presented in the local council elections that were held in 2012-2013. PCHR considers the interpretation of the law, even if it is discretionary, should be in conformity with the logic and spirit of the law and the main aim of the electoral process. The intent of the legislature should be understood through the context of the law and relevant laws, especially the Basic Law. PCHR believes that CEC was mistaken when considered a candidate’s non-fulfillment of the nomination conditions gives CEC the right to deny the whole list the right to nomination for the following reasons:

 

1. CEC claimed it has the power to reject any list not fulfilling the conditions according to article 20 (A) upon which the CEC gave itself the power to cancel the list because one of its candidates violated the conditions. This interpretation made by CEC shows confusion between rejection mentioned in article 20 and cancellation mentioned in article 15 (5);

Article 20 of the Local Council Elections Law stipulates, “The Central Elections Commission shall reject the registration request of an electoral list”, but does not provide that the Commission has the power to “cancel” a list if an objection showed a candidate in the list had violated the conditions. It seems that CEC considered what it has done after the objections had been submitted as rejection or approval while, in fact, the rejection or approval phase precedes the submission of objections. Therefore, removing a list following the objections is “cancellation”. PCHR explains that rejecting a list is allowed only if the list violates one of the conditions provided in article (16) when submitting nomination applications.

 

The difference between the two terms is based on the nature and results of each one of them. The rejection is an initial phase that precedes the establishment of any legal status that would give the list a chance to avoid any flaws and acquire its legal status again because the registration is still open in that phase. No one, thus, is denied his/her right to nomination that is guaranteed in the Basic Law because of a minor flaw that can be easily avoided by eliminating the candidate against whom an objection was presented. The “cancellation” is a power that follows the establishment of any legal status, which means the inability to correct the legal status because the nomination is closed. In terms of the results, cancellation undermines the right to nomination and denies the list and political party to which the list is affiliated the right to participate in the elections. As a result, there will be no equal opportunities for all parties in all electoral stages.

 

2. PCHR believes that elimination of a candidate should be in the form of withdrawal from the list without filling the vacant positions. Therefore, according to article 15 (5), “If withdrawal of one or more candidate led to a violation of the provisions of paragraph 5 of article 14, and the list is unable to fill the vacant positions during the nomination period, the list shall be considered null and void. The number of candidates on one electoral list shall not be less than the majority of the number of seats allocated to the electoral district” (half the number + 1). This was not the case in the electoral lists that were cancelled.

 

3. CEC should have differentiated between objections to lists and objections to candidates as explained in article 22 of the same law,“Any person, within three days of publishing candidates lists, may contest, in writing, to his election committee a list or one or more of its candidates….” The law set a condition for the list to be approved in article 14 (5), “The number of candidates on one electoral list shall not be less than the majority of the number of seats allocated to the electoral district.” The five conditions stipulated in article (18) are related to candidates in the electoral list not the list itself. The list, thus, is null and void when the only condition related to it is not available and the candidate is eliminated when one or more conditions related to him/her are not available. Mixing the two terms together violates the legal texts and logic, therefore, there should be the word “or” between the two terms.
4. What was mentioned by CEC in its local council elections’ report in 2012-2013 that it granted itself the power to cancel any list if there is a flaw in it because CEC takes the list as a “whole cluster, and any flaw in the list or any of its candidates leads to the rejection of the whole list” is erroneous for the following reasons:

 

• This is valid and logical before the objections period of and closure of the nomination period. During that period, CEC has the right to approve or reject the whole list, which is then allowed to make necessary changes and apply again.  However, having the door for nomination closed and the lists initially approved, what CEC calls rejection of the list is actually “cancellation” as we mentioned above.  Thus, this power requires a clear legal text and not only an interpretation which is logically questionable.
• The idea that a list is taken as a whole cluster is in violation of Article 15 (5) which stipulates that it is possible for one candidate to withdraw without cancelling the whole list.
• The law mentions “objections to a list” and “objections to one candidate or more”.  If the objection to one candidate includes the whole list then why the law mentions both terms and did not suffice with the term “objection to lists” in Article 22.

 

5. In its 2012-2013 local council elections’ report, CEC itself approved that the idea of canceling the whole list as one of its candidates did not meet the nomination conditions resulted in a dispute in the West Bank courts. Some of the courts went to rejecting the CEC’s list cancelation while other courts approved it.  This reveals how big the dispute was due to the ambiguity of law. Thus, CEC should have taken the option that contributes to maintaining the voters’ will instead of depriving them from a list that might be their choice. CEC could have easily avoided this by eliminating the candidate and keeping the list, which might represent a big number of Palestinians.  Therefore, CEC should not ignore their right to choose whom they see their representatives.
6. The CEC’s decision violates the right to nomination guaranteed by the Palestinian Basic Law in Article (26) as it deprives a lot of candidates from the nomination opportunity by dropping their list without giving them the right to make the necessary changes to the list.
7. The CEC’s argument on previously informing the candidates of cancelling the whole list in case one of its candidates was eliminated does not change the fact that interpretation of the law was not correct. Moreover, CEC granted itself a serious power that requires a clear and explicit legal text.  This results in assaulting legal status and rights of other candidates that were not subject to objection. These rights must not be affected.
8. The role of Elections Law is to regulate the electoral process so as to guarantee the voters’ real will and not punish the electoral lists which did not exert enough effort to avoid the flaws.  Thus, the authorities responsible for interpreting the law should be abide by the logic that reveals the voters’ real will.  The CEC’s cancelation of a whole list as a candidate does not meet the nomination conditions without taking into consideration the voting bloc the list represents wastes the voters’ will and votes.
9. Relying on Article 14 (2) which stipulates that lists are “closed” and claiming that the whole list is cancelled in case a candidate is eliminated is considered poor understanding of the article.  The term “closed” means that the voter cannot exclude one out of the list he wants to vote for.  Moreover, order of the candidates’ names cannot be changed. Saying otherwise makes the withdrawal of one candidate from the list cancel the whole list.  Law does not stipulate this, in fact, the law is on the opposite direction in Article 15 (5).  This interpretation also means that if one of the candidates die, the whole list will be cancelled as well, and this is of course illogical.

Recommendations:

PCHR emphasizes the main goal of holding the electoral process is to identify the voters’ will during elections that ensure the widest popular participation and right to run for elections for all lists and their representing parties on an equal footing.  PCHR also:

1. Stresses the right of lists’ representatives or candidates to appeal the CEC’s decisions before the Courts of First Instance according to Article (23) of the Local Council Elections Law within 3 days of receiving notifications from CEC.  The Court should decide on all appeals within 5 days of the appeals’ submission according to Article 24 of the same law.
2. Emphasizes the affected persons’ right to resort to the competent court to appeal the CEC’s interpretation of the Local Council Elections law.
3. Stresses that cancellation of a list, if approved, as one of its candidates does not meet the nomination conditions requires reopening the door to nomination, otherwise, this will be considered as denial of nomination right that is ensured in law and denial of big number of people of their right to choose their representatives.
4. Amending the law in a way explicitly stipulating that the approval of objections to a candidate leads to eliminating him/her from that list to be replaced by the next on the list according to the order of names and etc.
5. Recommends CEC to work on amending the current law as soon as possible and remove any misinterpretation so that everyone can understand the law and apply its provisions.